Paint Schoodic

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Monday, March 13, 2017

Sneering and sniggering to the bank

Naked, 1988, by Jeff Koons

Jeff Koons has been found guilty of plagiarizing
the work of a popular French photographer. A French court has
ruled that Koons’ Naked (1988) ripped
off a black-and-white photograph by the late Jean-François
Bauret (1932-2014). Although unknown here in the United States, Bauret was
successful enough to have earned the Ministry of Culture’s Chevalier de
l'ordre des Arts et des Lettres. His 1975 postcard picture, Enfants, was a popular seller in France.

Bauret’s widow was awarded a penalty payment of €44,000. That
translates into US $46,937.88. Half of it, roughly, will cover her legal fees. That
doesn’t compensate for seeing her husband’s endearing portrait of
children turned into a sniggering, sexualized bit of American camp culture.

Enfants, 1975, by Jean-Francois Bauret

Ten months ago, Naked sold
(or didn’t sell, to be more precise) for $5.7 million at Phillips’ 20th century and contemporary
art sale in New York. When pressed on the subject, Phillips’ CEO Edward Dolman
admitted that the porcelain sculpture went to the artwork’s third party
guarantor. The fact that vast sums of money are exchanged for works nobody
wants is the first hint that what we’re talking about here is fungibility, not
creativity.

This is the fifth time Koons has been taken to court over his Banality series, which purports to
show the dullness of the objects of our modern life by making equally dull, but
really pricey, copies. In fact, the whole point is to sneer at the working and
middle classes, who can’t afford to surround themselves with exquisite objects.

String of Puppies, 1988, by Jeff Koons

In 1989, photographer Art Rogers sued Koons for
stealing an image for his sculpture “String of Puppies.” Koons was sued over
the sculpture Wild Boy
and Puppy, which was clearly a rip-off of Odie from Garfield.

Both times Koons claimed the fair use
exemption by parody. Both times, he lost. The court held that he could have
made his general statements about parody without copying those artists’
specific work.

String of Puppies, by Art Rogers

Fashion photographer Andrea Blanch sued Koons
for using an image entitled Silk Sandals
by Gucci, published in Allure in 2000. There, Blanch lost because the
courts held that he did not own the image copyright to the sandals themselves.
The resulting work, Niagara,
is also substantially different from the original photo.

French adman Franck Davidovici filed a counterfeiting
lawsuit over the artist’s 1988 work Fait
d’Hiver. According to Le Monde, the penalties, if Davidovici prevails, will be
quite a bit higher than in the Buaret case. The plaintiff demands the sculpture
itself, along with an additional €271,000 in damages. “Even if that the
claim is only brought against the edition of Fait d’Hiver currently
in France for the Pompidou show—there are three other copies—the total
requested damages could theoretically stretch well into the millions,” wrote
Alexander Forbes. He then went on to mention the issue that bedevils this all:
that the works in question are no longer owned by Koons himself, but are being
hustled on the aftermarket. They’re commodities.

Fait d’Hiver, 1988, by
Jeff Koons

Koons is an appropriation artist, so naturally he takes the
broadest possible view of the fair use exemption. And appropriation art sells,
which is why Koons gets millions for work of dubious intellectual and technical quality.

There is no consistent answer to the question of where
artistic appropriation becomes copyright infringement. It sometimes seems to
have mainly to do with which end of the stick you’re holding.

The original ad by Franck Davidovici. The penguin makes all
the difference.

In 2011 Koons sent a cease-and-desist letter to a San
Francisco store and gallery for selling balloon dog bookends. Attorney Jedediah
Wakefield responded, “As virtually any clown can attest, no one owns the idea of making a
balloon dog, and the shape created by twisting a balloon into a dog-like form
is part of the public domain.” He then went on to skewer Koons as, “a retired
stockbroker whose sculptures and other works are well-known for copying
pre-existing forms and images from popular culture.”

Meanwhile, it is still unwise to appropriate another person’s
photograph for your reference material. The Bauret case reinforces that. But if
you’re thinking that the rich and famous get richer and more famous
by flouting the law, I can’t argue with you.